Presentation on theme: "H-1B Visas Dylan Sugiyama International Employment Specialist North Carolina Office of State Personnel."— Presentation transcript:
1H-1B VisasDylan Sugiyama International Employment Specialist North Carolina Office of State Personnel
2AGENDA Define H-1B and eligibility requirements Provide an overview of I-129 formDescribe the components of a complete H-1B petitionFeesPrevailing Wage
3Agenda (Cont.) Labor Conditions Application Employee qualifications and equivalenciesNumerical limitationsWillful violators and H-1B dependent employersPetition approvals, denials, extensions, amendments, etc.
4NonimmigrantA person who temporarily travels to the United States to work or visitThese people attest to Immigration Services that they plan to return to their home country in the near future
5What is an H-1B Visa?Common nonimmigrant visa for working professionalsAlien coming to the United States to perform services in a specialty occupation
6Specialty OccupationRequires a bachelor’s degree or higher as a minimum for entry into position
7Specialty OccupationDegree requirement is common to the industry in similar positions among similar organizations
8Specialty OccupationThe employer must normally require a degree or its equivalent, or the nature of the specific duties are so complex that a bachelor’s degree is associated with the attainment of the required knowledge
9Specialty OccupationMust utilize federal immigration qualification equivalency standards in making credential equivalency determinationsEquivalency standards ordinarily used by the state may not be the same
10Specialty Occupation-Evidence Submit resumes of other employees who currently hold or who have held this position in the pastSubmit a statement from the Occupational Outlook Handbook, showing that the position generally requires at least a Bachelor’s degree
11Specialty Occupation-Evidence Occupational Outlook Handbook can also be used to show that a specific type of degree is required for the position
12H-1B Initial Evaluation Analyze the candidate’s current visa status:What type of visa do they have?How long have they been in that status?Can this person legally continue to work in H-1B visa status for an adequate amount of time?
13H-1B Initial Evaluation (Possibility #1) Candidate has not yet worked in H status:These people are counted against numerical visa limitationsDepending on the time of year, visa numbers may be exhausted, and therefore, a visa might not be available for this person
14H-1B Initial Evaluation (Possibility #2) Candidate is already in H ClassificationPerson who already possesses an H visa may change employers without having their new petition count against numerical limitationIf candidate is still eligible to work for an adequate amount of time in H status, proceed with petition
15H-1B Initial Evaluation Check to see if yearly cap has been reached at:
16H-1B Initial Evaluation Consider these questions in your evaluation:What are your agency’s budget constraints?How long does it take to train?How expensive is it to train?Are there similarly qualified United States workers who won’t require visa sponsorship?
17THE I-129 FORM Basic Nonimmigrant Visa Application Used for all Nonimmigrant Visas, not just H-1BTells Immigration which type of nonimmigrant visa you are requesting
18The I-129 Form: Biographic Information As an agency sponsor, do not write anything in the “family name” sectionEnter the Agency name and address in “Company or Organization”Enter Employer Identification Number
19The I-129 Form: What do you want Immigration to do? Are you petitioning for a new employee, or is this a renewal?Are you asking Immigration to amend a previous petition?Are you asking Immigration to change a candidate’s visa status (i.e., form a student visa to an H-1B)?
20The I-129 Form: Who is the alien? What is the employee’s name/address?What is the employee’s immigration history?
21The I-129 Form: Immigration History How many times has this person applied for this type of visa?Has this person ever applied for a green card?If this person has applied for a green card, are they eligible for a temporary visa (i.e., do they intend to leave the U.S. upon the expiration of the H-1B)?
22The I-129 Form: Job Information What will this person be doing?How much will you pay this person?Are you providing the same benefits to this person as you are to American workers?
23The I-129 Form: Employer’s Signature You are verifying the accuracy of all included information
24I-129 H Supplement FormsSupplement states that petitioner’s intention is to apply for an H-1B nonimmigrant visa.Form details job specific information that should be consistent with generic I-129 form
25H-1B Fee Determination and Numerical Limitation Form Used to calculate fee amounts.
26When do I file?Petitions for an H-1B visa may not be filed more than 6 months before the date on which the employee will actually begin service.
27For How Long are H-1B Visas Valid? Visas are valid for up to 3 yearsMay be renewed for 3 additional yearsAfter 6 years in H-1B status, person must leave the U.S. for one year before he/she is eligible again (EXCEPTION TO THIS WILL BE NOTED LATER)
28Components of a complete H-1B petition Completed I-129 and supplementsEvidence that the Labor Condition Application has been filed with the Department of LaborEvidence showing the proposed employment qualifies as a specialty occupation
29Components of a complete H-1B petition (cont.) Evidence showing that the alien has the required degreeCopy of the degreeCopy of foreign degree and equivalence certificationEvidence of education and experience that is equivalent to a U.S. degree
30Components of a complete H-1B petition (cont.) Copy of any required license or other official permission to practice the occupation in the state of intended employmentCopy of a written contract between employer and employee
31INDEPENDENT CONTRACTOR A person who carries on independent business, contracts to do a piece of work according to their own means and methods and is subject to control only as to results, and for whom the employer does not set work hours or provide necessary tools to do the job, or whom the employer does not have authority to hire and fire.
32Components of a Complete H-1B Petition (Cont.) Previous immigration documentsPrevious visa stampsI-94 cardsCopies of passports
33H-1B Fees I-129 Filing fee of $320 $1500 additional H status filing fee$500 Security feeIf necessary or desired, $1000 additional fee for premium processing (requires decision within 14 days)
34H-1B Fees Application fees are paid by the employer Employer can not ask employee to repay application feesIf an attorney is hired, the attorney’s fees are paid by the employer
35$1500 Fee not required when… Petition is being amended and does not request an extension of stayFiled for the sole purpose of correcting a service errorPetition is the second or subsequent request for an extension of stay
36Exemptions from $1500 fee An institution of higher education A nonprofit organization associated with an institution of higher education
37Data Collection and Fee Exemption Form If you are not sure about what fees you should be paying, this form determines whether the employer is exempt from paying the additional filing fees
38Liability for Transportation Costs Employer is liable for reasonable costs of return transportation if the alien is dismissed from employment before the end of the period of authorized admission
39Liability for Transportation Costs If the alien voluntarily terminates his or her employment prior to the expiration of the validity of the petition, the alien has not been dismissed
40Determining SalaryMust determine exact salary before agreeing to sponsor an H-1BSalary must be equal to or greater than the prevailing wage
41Determining SalaryIf you know that your agency can not afford to pay the prevailing wage, you are not permitted to hire a worker on an H-1B visaIf you pay American workers more than the prevailing wage, you must pay an H-1B worker at least what you pay similarly qualified Americans
42Determining SalaryRate of pay per year only includes money paid to the workerSalary does not include a cash value of benefits given to an employee
43Determining Salary After salary has been determined: Make sure that you have posted or sent your notice of filing an LCAYou must inform your American workers of your intent to hire an alien worker
45PREVAILING WAGE LEVEL STEP 1: Go to O*Net online (http://online.onetcenter.org)Look up appropriate job title by SOC codeSelect the O*Net position that most closely matches the employer’s position
46Prevailing wage levelReview the tasks, knowledge, etc., to gain an understanding of what is generally required for successful performance in that occupation
47Prevailing Wage Level Step 2: Experience Compare the overall experience described in the O*Net Job Zone to experience required by the jobAdd wage level points for any experience requirements above the O*Net job zone requirements
48Prevailing Wage Level Step 3: Education Compare the education generally required for the occupation as described in the O*Net to that required by the employerIf the education required by the employer is more than what is required in the O*Net description, add points to the wage level
49Prevailing Wage Level Step 4: Special Skills Compare the special skills generally required for the occupation as described in the O*Net to those required by the employerIf the special skills required by the employer are more than what are required in the O*Net description, add points to the wage level
50Prevailing Wage Level Step 5: Licensure Compare the licenses generally required for the occupation as described in the O*Net to those required by the employerIf the licensure requirement by the employer is more than what is required in the O*Net description, add points to the wage level
51Prevailing Wage Level Step 6: Supervisory Duties Compare the supervisory responsibilities generally required for the occupation as described in the O*Net to those required by the employerIf the supervisory responsibilities required by the employer are more than what is required in the O*Net description, add points to the wage level
52Labor Conditions Application (LCA) Before filing an H-1B application, the employer must first obtain a certification from the Department of Labor that it has filed a labor condition application
53LCA (cont.)The employer is required to make several attestations to the Department of Labor in order to prove that the H-1B employee is being appropriately treatedWageWorking ConditionsStrike, lockout or work stoppageNotice
54LCA Attestation #1 Wage Attestation The employer attests that H-1B employee will be paid wages equal to or higher than those paid to all other individuals with similar experience and qualifications.
55LCA Attestation #1 (Cont.) Wage AttestationYou must continue to pay an H-1B alien, even if they are between projects (nonproductive time)You must offer similar raises and bonuses to an H-1B worker to those that you offer to American workers
56LCA Attestation #2 Working Conditions The employer attests that the employment of H-1B nonimmigrants in the named occupation will not adversely affect the working conditions of U.S. workers similarly employed.
57LCA Attestation #2 (Cont.) You are adversely affecting American working conditions if you:Pay foreign nationals less than AmericansOffer fewer benefits to foreign nationalsImplement stricter work requirements on foreign nationals without offering them higher pay
58LCA Attestation #3 Strike, Lockout or Work Stoppage: The employer attests that on the date the LCA is signed, there is not a strike, lockout or work stoppage occurring.If one of these events occurs after the LCA is submitted, the employer must notify DOL within 3 daysEvent must be over before LCA can be used in support of an H-1B application
59LCA Attestation #4 Notice Employer attests that, as of the filing date, notice of the labor condition application has been provided to workers employed in the named occupation
60LCA Attestation #4 (Cont.) NoticeNotice of the application shall be provided to workers by physical posting in a conspicuous location, where the H-1B worker will be employedNotice can be given electronically
61LCA Attestation #4 (Cont.) Notice shall be given within 30 days before the date the LCA is filedShall remain posted for 10 daysNotice given by need only be given once
62LCAEach H-1B nonimmigrant must be supplied with a copy of the certified LCA
63LCAWhile an approved LCA is valid, it can be used for additional alien workersUse photocopies of the same application
64Employer LCA Penalties If employer fails to meet LCA conditions:Immigration Service shall not approve petitions filed with respect to that employer for a period of at least one year
66PUBLIC ACCESS FILESMust be created within 1 working day of the LCA being filedIncludes:Copy of the approved LCAEvidence of the wage rateExplanation of the wage determination (State pay grade)
67Public Access Files (Cont.) Prevailing Wage SourceDocumentation proving the notice requirement has been fulfilledSummary of benefits provided to all employees in similar paygrades
68Public Access Files (Cont.) The public access file must be maintained for a period of one year beyond the end of the employment period stated in the LCA.
69Employee Qualifications Employee must:Hold at least a Bachelor’s degree or an equivalent foreign degreeIf necessary, hold an unrestricted State license, registration or certification which authorizes him or her to fully practice the specialty occupation
70Employee Qualifications Alien’s degree must be in a discipline that is directly connected to the successful completion of the duties of the proposed position
71Employee Qualifications Employee may possess education, specialized training and progressively responsible experience that is equivalent to the completion of a U.S. Bachelor’s degree
72Credential Equivalency Employees may substitute experience for educationExperience must be evaluated by an accredited agency, and that agency must submit a certified report of the equivalence
73Credential Equivalency Credential evaluation feesThese are not fees that should be paid by the agencyThe evaluation is the property of the alien, and the expense should be incurred by the alien
74Methods of Equivalence Evaluation from an official with authority to grant college level credit at an accredited College or UniversityThis school must possess a program for granting such credit
75Methods of Equivalence Results of a recognized college level equivalency examination or special credit programCollege Level Examination Program (CLEP)Program on Noncollegiate Sponsored Instruction (PONSI)
76Methods of Equivalence Evidence of certification from a nationally recognized professional association
77Immigration Service Method of Equivalence Bachelors degreeThree years of specialized training/ experience must be demonstrated for each year of college level training the alien lacksMasters DegreeBachelors degree followed by at least five years of experience in the specialty
78Proving CredentialsThe immigration service often requests that credentials be verified.You should submit evidence of credential verification with the visa application
79Documentation Used to Prove Credentials Two recognized authorities in the same specialty occupationMembership in a recognized association related to the specialty occupationLicense to practice the specialty occupation
80Examples of Qualification Documentation (Not an exclusive list) School recordsDiplomasDegreesAffidavitsContracts including dates of previous employment
81Qualification Documentation Affidavits from former employers must describe the beneficiary’s expertise and specifically describe former dutiesAsk the employee to get these affidavits, as many employers will only verify dates of employment
82LicensureIf an occupation requires a license, it must be obtained by the worker before the approval of the petitionTemporary licenses are allowed at the discretion of the Immigration Service
83Temporary LicensureIf an alien is working with a temporary license, the H-1B petition will only be valid for one year.After one year, the worker must possess full licensure, or the renewal will be denied
84Multiple Work Locations A petition that requires services to be performed in more than one location mustInclude an itinerary with dates and locations of the work sites and projectsBe submitted to the Immigration office that has jurisdiction over the employers main office
85Amended PetitionEmployer must file an amended petition to reflect any material changes in the terms and conditions of employmentAmended petition must include a new approved Labor Conditions Application (LCA)
86Numerical Limitations 65,000 H-1B visas per fiscal year20,000 additional visas for candidates who possess at least a Master’s degree from an accredited United States college or university
87Numerical Limitations Extensions of stay not counted against numerical limitationEmployee’s dependents are not counted against numerical limitationWhen numbers are used, additional applications and fees are returned to sender
88Numerical Limitations Do Not Apply Extend the amount of time of a current H-1BChange of H-1B employerChange in terms of H-1B employment:Length of employmentSalaryJob descriptionAllow H-1B worker to hold an additional position
89REMEMBER: H-1B Initial Evaluation Check to see if yearly cap has been reached at:
90H-1B Dependent Employers and Willful Violators Employers who are categorized as H-1B dependent or as willful violators are subject to additional attestations to the Department of Labor
91H-1B Dependent Employer Has 25 or fewer full-time employees who are employed in the U.S., and employs more than seven H-1B workers
92H-1B Dependent Employer Has at least 26 but not more than 50 full-time employees employed in the U.S. and employs more than 12 H-1B workers
93H-1B Dependent Employer Has at least 51 full time employees in the U.S., 15% of whom are H-1B workers
94Willful ViolatorEmployer who has willfully failed to meet a condition of the Labor Condition Application
95H-1B Dependent Employer & Willful Violator: Additional Attestations Displacement: Non-displacement of the U.S. workers in employer's work forceOccurs when an employer has laid off employees, and within 90 days attempts to hire an H-1B worker
96H-1B Dependent Employer & Willful Violator: Additional Attestations Secondary Displacement: Non-displacement of U.S. workers in another employer's work forceH-1B employer is a dependent or a willful violator and attempts to place an H-1B with an affiliated non-dependent employer that has, in fact, laid off within the last 90 days.
97H-1B Dependent Employer & Willful Violator: Additional Attestations Recruitment and Hiring: Recruitment of U.S. workers and hiring of U.S. worker applicant(s) who are equally or better qualified than the H-1B nonimmigrant(s)
98H-1B Dependent Employer & Willful Violator Additional Attestations Employer must take good faith steps to recruit U.S. workers using industry wide standardsMust offer a job to any U.S. worker who is equally or better qualified than the H-1B worker
99Employees Exempt from Additional Attestations “Priority Workers” are exempt from the recruitment and hiring attestation.“Priority Workers” are defined as persons with extraordinary ability, outstanding professors or researchers, or certain multinational managers or executives.
100Employees Exempt from Additional Attestations Receives wages (including bonus) of at least $60,000 or;Has attained a master’s degree or higher (or equivalent) in a specialty related to the intended position
101H-1B PortabilityH-1B portable foreign nationals may begin work for a new employer upon filing of a new H-1B petitionH-1B applicant must show the new employer a receipt for filing a new H-1B application before he or she left his/her former employer
102Audits and PenaltiesThe U.S. Department of Labor is responsible for enforcing the LCA requirements. Consequently, the DOL can conduct an LCA investigation on its own or in response to a complaint made by any affected party (complaints must be filed no later than 12 months after the alleged violation). If the employer willfully and knowingly violates the requirements, then penalties will apply. Possible penalties range from $1000 fine to $35,000 and from one year to three years debarment (elimination) from filing H1B visa requests.
103Job Reclassification = Amended Petition Must file a revised form I-129 showing details of job changeMust file a new LCA to accompany the applicationFees are reduced for a revised application
104Approval Notices Issues on form I-797 Decisions will not be made earlier than 6 months before the date of actual need of the visaIncludesNameClassificationPeriod of validity
105Approval Notices Check for approvals online at: https://egov.immigration.gov/cris/caseStatusSearchDisplay.do;jsessionid=bjQCu6ZbZCY_
106Validity of H-1B VisaIf approved before the date the petitioner indicates as the employee’s start date, the approval notice shall show the actual dates requestedIf approved after the date the petitioner indicates as the employee’s start date, start date will typically be the approval date
107Admission of Alien Worker Worker may enter the United States 10 days prior to the validity period of the H-1B visaMust leave the United States within 10 days after the expiration of the visaAlien may not work during 10 day grace periods
108Extension of H-1B Additional supporting documentation is not required New prevailing wage determination is necessaryExtension may only be filed if the original petition has not yet expired
109Period of StayWhen an alien has reached the maximum allowable stay in H status, a new H petition will not be approved unless the alien has resided outside of the United States for one year
110Exception to 6 Year Limit If an alien has made an application for a green card, and that application has been pending for at least one year, that person may continue to file for extensions of his or her H-1B visa in one year intervals
111Denial of H-1B PetitionImmigration Service will notify employer of its intent to denyEmployer may rebut the evidence the Service offers in its intent within 30 days of service of the notice
112Denial of H-1B PetitionEmployer will be informed of reasons for the denialAppeal is available for denial of an original petitionNo appeal is available for the denial of an extension petition
113Revocation of an H-1B Two types of revocation Revocation on notice Automatic revocation
114Revocation of an H-1B Petition (Cont.) Immigration Service may revoke at any timeRevocation is automatic ifEmployer files a written withdrawalEmployer ceases to exist
115Revocation of an H-1B Petition (Cont.) Revocation on noticeWorker is no longer employed in the positionStatements included in the petition were not trueEmployer violated conditions of the approved petitionThe approval was made in error
116Revocation of an H-1B Petition (Cont.) Employer may submit rebuttal evidence within 30 days of receipt of notice of intent to revokeAutomatic revocations may not be appealedPetitions revoked on notice may be appealed